Cassation for Lack of Separation between Investigating Judge and Judge of Liberties

Extract

[...] Court of Cassation, Criminal Chamber, June no. 22-82.698 - A judge, having made an assessment as an investigating judge of the existence of serious or concordant indications of an attempted murder, can he then intervene as a judge of freedoms and detention to rule on security measures? The fundamental principles of criminal procedure Comment on the judgment : Crim. June no. 22-82.698, RSC obs. P.-J. Delage Gustave Le Bon wrote, in 1932, in The Uncertainties of the Present Hour: « Impartiality in politics is impossible because an impartial man would immediately have against him all the parties, including the one to which he belongs. [...]

[...] The principle of objective impartiality affirmed without detour This affirmation of the principle of objective impartiality implies a rigorous separation of judicial functions The decisive criterion in this case was that of the assessment of serious or concordant indices A rigorous separation of judicial functions In addition to the separation of executive, legislative, and judicial functions, there are sub-differences within the latter category. In fact, France applies a separation of judicial functions. In this case, the judges of the criminal chamber of the Court of Cassation considered that the confusion of roles between the investigating judge on the one hand and the judge of liberties and detention on the other hand infringes on the principle of impartiality. [...]

[...] This rigor is fundamental in that this separation allows for ensuring a fresh look at each stage of the procedure. Consequently, it allows the litigants to have confidence in the fairness of the trial, in justice in general. This distinction/separation between investigating judge and judge of liberties and detention therefore allows for ensuring the objectivity of the decision-making process. This cassation for lack of separation of functions between the investigating judge and the judge of liberties and detention therefore for impartiality was taken with the main criterion being the assessment of serious or concordant indices. [...]

[...] Consequently, the present decision has the effect of strengthening the harmonization between internal law and European law. It also allows for a better knowledge, by the litigant, of their rights and obligations and, in this sense, it reinforces legal security. The Court of Cassation made an exact application of the texts it aimed at. It seems to have respected the ratio legis of national and European texts, their raison d'être. The purpose being to put an end to impartiality so that the judgments rendered respect the great fundamental principles of criminal procedure. [...]

[...] The investigating judge seized the judge of liberties of detention for the purpose of provisional detention. This measure was authorized and subsequently prolonged. A request for release was made by the person under investigation on March This was rejected by an order of the judge of liberties and detention dated March 18, 2022. Following a decision rendered in the first instance, the instruction chamber of the Rouen Court of Appeal ruled on April It confirmed the order of the judge of liberties and detention rejecting the request for release. [...]